29 March 2005

In United States v. Lopez, 514 U.S. 549 (1995) the Court, for the first time since 1937, struck down a law because it exceeded the scope of Congress' commerce power. Understandably, the federal circuits reacted with caution: no court struck down a criminal statute immediately post-Lopez. Granted, the federalism gurus of the fightin' Fifth tried.

Three years after Lopez, the Fifth Circuit - which, we'll remember, gave us Lopez - examined constitutional challenges to the Hobbs Act. In United States v. Hickman, 151 F.3d 446, rehearing en banc 179 F.3d 230 (CA5 1999), cert. denied 530 U.S. 1210 (2000) an equally divided en banc panel of the Fifth Circuit affirmed convictions under the Hobbs Act against a Commerce Clause-based attack. Perhaps Lopez was an abberation.

Then in United States v. Morrison, 529 U.S. 598 (2000), the Court held that the civil remedy provision of the Violence Against Women Act violated the Commerce Clause. And the next week, in Jones v. United States, 529 U.S. 848 (2000), the Court construed the federal arson statute narrowly because, applying it to the burning of a private resident, would raise considerable constitutional problems in light of Lopez. The Court was taking federalism seriously. Did the circuits hear its call? Not for another three years.

No federal circuit held that a federal criminal law was unconstitutional under the Commerce Clause until nearly eight years after Lopez, and three years after Morrison. The circuits, it seemed, did not take Lopez or Morrison seriously - at least not seriously enough to implement it.

In United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003), a 2-1 panel reversed a conviction under the federal child pornography law because the pornographic images were not transported interstate. In McCoy, a mother was convicted under federal child pornography laws for taking sexually-explicit pictures of herself and her daughter. The government failed to prove that McCoy took the photographs for commercial gain, or that the photographs traveled interstate. Because of that, her prosecution was unconstitutional under the Commerce Clause.

On the heels of McCoy came United States v. Stewart, 348 F.3d 1132 (9th Cir. 2003) (Kozinski, J.). The issue in Stewart was whether Congress' commerce power allowed it to criminalize the possession of a home-made machine-gun Stewart had converted his semi-automatic rifle to fire automatically with parts that had moved through interstate commerce. Holding that Congress lacked the power, Judge Kozinski wrote:

Indeed, some of the machinegun parts did move in interstate commerce. At some level, of course, everything we own is composed of something that once traveled in commerce. This cannot mean that everything is subject to federal regulation under the Commerce Clause, else that constitutional limitation would be entirely meaningless. As Lopez reminds us, Congress’s power has limits, and we must be mindful of those limits so as not to obliterate the distinction between what is national and what is local and create a completely centralized government.

Id. at 1135 (quotation marks omitted).

In Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted, 124 S.Ct. 2909, 72 (U.S. Jun 28, 2004), a 2-1 panel held that the Controlled Substance Act, to the extent that it criminalized the use of marijuana not purchased nor obtained interstate, was an unconstitutional exercise of power under the Commerce Clause. Wrote Judge Pregerson:

The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce.

Id. at 1229-30. The Ninth Circuit has been silent on crime and federalism issues post-Raich. But in 2004, the Eleventh Circuit spoke.

In United States v. Maxwell, 2004 WL 2191801 (11th Cir., Oct. 1, 2004), a unanimous three-judge panel held that Congress may not criminalize the intrastate possession of child pornography, even if the child pornography is kept on items that moved through interstate commerce. In Maxwell, the defendant kept his child pornography on diskettes that moved through interstate commerce. However, the prosecution could not establish that the pictures on the disks were taken outside of Maxwell's home state - Florida. Thus, the law was unconstitutional as applied to him. Significantly, the panel held that it would not apply the aggregate affects test of Wickard v. Filburn to non-commercial activity.

A couple of weeks ago, in United States v. Smith, No. 03-13639 (11th Cir. Mar. 18, 2005), a different and unanimous three-judge panel affirmed Maxwell's holding, and reviewing for plain error, held that allowing Maxwell-type prosecution would be reversed.

Even though there are over 4,000 federal criminal laws, the circuits have only given us a hand-full of federalism cases in several years. It seems that most circuits do not take Lopez and Morrison seriously.

In Virginia a composite artist sketch of the defendant is not a statement within the meaning of the hearsay rule. Currently, there are two requirements for it to be admissible: 1) the artist’s sketch was obtained through a process that was not impermissibly suggestive, and 2) the person who gave the artist the information properly identifies the sketch. An artist’s testimony is not a prerequisite for admissibility so long as the above two requirements are met. Harrison v. Commonwealth, 9 Va. App. 187 (1989) (holding that a police artist sketch is not hearsay). See also Brummett v. Commonwealth, 1996 Va. App. LEXIS (1996) (applying Harrison to find sketch admissible).

This law runs afoul of the Supreme Court ruling in Crawford v. Washington, 541 U.S. 36 (2004). The Supreme Court held that the 6th Amendment provides a procedural guarantee to cross examine and test a statement, it the defendant shows that the statement is testimonial in nature. A statement is considered testimonial if it is prepared for or given during trial. Among other examples, the Supreme Court stated that police reports are definitely considered testimonial for purposes of the 6th Amendment. Thus, Virginia Courts should definitely consider police artist sketches as hearsay.

Why does this matter? Since Virginia Courts do not consider police artist sketches as hearsay, the defendant has no right to confront the officer that made the sketch. In certain cases it can be critical to test the officer that made the sketch and the environment that was present at the time. Research has shown that witnesses under stressful situations unconsciously reconstruct what has occurred from what they assume must have occurred. Witnesses also tend to conform their continuing perception of their idea of what an object should like was they have classified the figure. This means that having a witness make a composite photo or sketch of an attacker in a context differing from that of the original observation is likely to introduce numerous errors. Once a witness has a picture in their mind, they will minimize the differences in appearance between the sketch and a suspect resembling it. For an indepth look at the unreliability of eyewitness identifications See Did Your Eyes Decieve You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 970 (1977).

28 March 2005

Mooney was convicted of several charges stemming from insider trading. The district court determined that Mooney's gain from his insider trading was $274,199.46. Mooney argued that a jury must determine the amount of his gain from the insider trading. A per curiam panel of the Eighth Circuit Court of Appeals disagreed:

Sentencing remains a court function under Booker. Judicial fact finding is permitted as long as it is understood that the guidelines are not mandatory. Although the court must consult the guidelines, it is not obligated to sentence according to them, and a sentence imposed in the exercise of discretion will be upheld if reasonable. Reasonableness may be demonstrated by a court's consideration of the guidelines, relevant conduct, and statutory sentencing factors.

I hate the PATRIOT Act. Well, not really. Mostly, I hate talking about the PATRIOT Act. So few people have read it, and thus, the PATRIOT Act is - depending upon whether you ask readers of the Times or viewers of FoxNews - downright evil or downright saintly.

Professor Kerr often sensibly defends the PATRIOT Act. But his recent remarks either show that he's way off, or that prosecution- and defense-minded people will never agree on what abuse means. Take a recent DOJ report.

Prof. Kerr blogged approvingly of a recent DOJ Office of the Inspector General report on PATRIOT Act abuses and noted:

These days, the DOJ OIG report comes and goes with no fanfare orpress attention. Why? Because the DOJ isn't finding much in the way ofabuses, and isn't finding anything at all related to the Patriot Act.

David Banach had recently purchased a laser pointer. To demonstrate to his daugher how it worked - and perhaps to demonstrate to his daughter that he lacked any common sense - Mr. Banach pointed the laser at airplanes. Utterly silly and downright stupid? Yes. An act of terrorism? The FBI didn't think so:

The FBI acknowledged the incident had no connection to terrorism but called Banach's actions "foolhardy and negligent."

When agents went to interrogate Mr. Banach, he further evidenced his lack of common sense by not only talking to the agents, but by lying to them. Quite stuipid. And quite felonious.

did knowingly and willfully interfere with, disable, and incapacitate a driver, captain, and person, namely aircraft pilots, while those aircraft pilots were employed in operating and maintaining a mass transportation vehicle, namely the Aircraft, with reckless disregard for the safety of human life.In violation of Title 18, United States Code, Sections 1993(a)(5), 1993(b), and 2.

Does anyone with any common sense or common decency really think Mr. Banach was trying to disable an airplane? Although I agree that someone who pointed a laser beam at an airplane while goofing off with his daugher and lied about it should face a 1001 prosectuion, I think that charging him under an anti-terrorism law is clearly abusive.

The guy is more like Bozo the Clown than Osama bin Laden. And the law should be able to charge Bozo and Osama appropriately. Charging Mr. Banach under the PATRIOT Act is abusive. Obviously, the Department of Justice would disagree.

So then, how can I trust a report investigating PATRIOT Act abuses when we can't even agree on what abuse means?

26 March 2005

David Bernstein, over at the Volokh Conspiracy, posits that the stationing of a female deputy in lockup was error because of obvious difference in her physical abilities and the ability of the prisoner who overcame her and killed the judge, court reporter, and two others in his short lived escape.Personally, I disagree with that position. Anyone who has been in a lockup area in a courthouse realizes that whoever is put in that area with the prisoners is at risk of attack by someone (or multiple someones) who can overwhelm him or her. Any competent sheriff's department should realize this and take steps to moderate it.

There are two primary reasons for having a deputy back in lockup. The first is to make sure that the inmates don't start beating on each other or have a medical emergency without the deputy calling for help in order to intervene. The second is traffic control - moving inmates from cell to cell, from cell to court, or from court to cell. In general, a deputy back there is going to always have a high chance of being blindsided and taken down. I don't care if he's a 7' monster if the inmate hits him with an entirely unexpected first blow the inmate will have a good chance at winning.

That's why (s)he's the deputy in the courthouse without a firearm. While the inmate may overwhelm that guard, and maybe even get access to the keys, he's going to have to come out of the lockup area and face the other deputies (and quite possibly some police) who outnumber him and are armed. His odds decrease drastically at that point. Most inmates wouldn't even think of trying to escape and those who would can usually do the math. But if one were desperate and could get ahold of a gun the odds might look a lot better.

And that's where the real stupidity in this case is located. If you've been to a jail or courthouse you've probably seen the lockboxes where law enforcement stores pistols. For those of you who haven't they are a series of small metal boxes, just large enough for a pistol and some personal effects, with front doors which slide to the side or swing open and a key lock on the front of the door. A well run place has these somewhere that has another deputy or two to watch over them. An even better run place would have the keys for these stored locally rather than giving each deputy a key to his particular box (although I must admit I've not seen this measure put in place).

The stupidity in this case is that the inmate could get to the firearm. How in the world could he actually get to that pistol? I mean, you have to assume that whoever is in the lockup area can be overwhelmed. You don't intend for it to happen and take precautions to avoid it but the very reason that person is in there without a firearm is that you assume it can happen. It is unbelievable that you would store that deputy's pistol where an inmate which overwhelmed her could actually get it. There should have been at least one locked door (let's face it, it should have been on another floor) and one armed deputy somewhere between lockup and that lockbox.

It's not incompetence in assigning deputies which caused this problem, it was the stupidity of allowing him to have access to a firearm.

25 March 2005

Although we don't agree on everything (he just won't believe that all my clients are innocent for some reason) Tom's a gentleman lawyer. I suspect his blog will continue to discuss issues in the political/religious areas and look forward to those moments when he has the time to do some in depth analysis. Maybe he'll also give us some insights as to how things look in the courtroom from the side of the bar with the black hats. ;-)

So, the prosecutors have been gone most of the week at a conference. Who knows what they do? Maybe they sit around all day long telling each other how evil those despicable defense attorneys are. ;-)

Anyway, I thought I'd be able to use this time to catch up on my jail visits. SIlly me.

One of my clients is somewhere in the system but no jail will admit to having her in custody. Another client refused to see me. My visit at one jail took so long for the first three clients that head count started (to be followed followed by shift change and supper). The guard told me I could wait (at least 1 1/2 hours) or come back later. I choose to come back later - it'll probably have to be Saturday.

One of my clients is being held in a prison (that county's jail is in the prison). The prison requires me to fax a sheet two days ahead in which I swear that I am an attorney and then call and tell them I'm coming. I fax it and call. They connect me to somebody's voice mail and I leave a message asking to come visit and telling her that I have faxed the sheet and asking to come visit. The next morning I get a message on my voicemail telling me that I left the message with the wrong person and asking me to call back so she can "fax me the proper form to send them" so I can visit my client. I call the number I've been given several times over a couple days and nobody answers.

I have two guys who are scheduled to be sentenced on Tuesday of next week. Before I can go visit them I need their presentence reports. As of this afternoon neither has shown up. One of these guys is in jail in Staunton, Virginia, a 2+ hour drive west. The other is in a regional jail 1+ hour south. Even if they show up tomorrow I can't get to both. The regional jail to the south is the one I'm going to have to go to Saturday but there's no way I can get to the one out west (it is Easter weekend after all). And if they show up Monday I'm not even sure I'll be able to get to my client in the southern jail.

Playing poker, even at high stakes, is not illegal in Virginia. A poker game becomes illegal when you have a professional operator who makes money on the game, typically by collecting a "rake" of up to 10 percent of all money wagered.

But some people I know are going to be in trouble if the Fairfax police are able to tap their computers:

Vice also said it is illegal in Virginia to gamble on poker Web sites that have become popular recently, because such sites also collect a rake. But he said his department has not made enforcement of online poker gambling a priority.

And why isn't it a priority? Because it's hard to get jurisdiction over that company in Belize who is running the web site.

10) Marry Scott Peterson? So what do you do if his appeal is successful? The evidence might not have proven anything but you'd have to be suspicious. Maybe you'd figure he couldn't be dumb enough to do it twice.

22 March 2005

The answer, sadly enough, is yes. No matter how hard we try to keep people from the Appalachians from becoming lawyers it just keeps happening. And now they even have their own law school so we're basically doomed.

Seriously though, yes people with thick accents do become trial lawyers. It's more common in larger urban areas where there are more immigrant communities but you run into it all over. I've seen guys in court with accents from the subcontinent (I won't pretend to know which accents), Arabic accents, and some African accent. Mostly, they are attorneys who have been hired to come down from DC. Strangely, all the many Spanish speaking lawyers (at least hereabouts) speak excellent English.

My feeling on this is that these lawyers get the majority of their business from people in their ethnic community who wish to have someone of their ilk represent them. After all, who hasn't had a client fire them because of race, ethnicity, sex, etc. and go hire somebody who can understand their particular needs? I know I have (picture a guy speaking with an almost comically stereotypical Italian-American accent firing his attorney because he's never been to Brooklyn).

In general, I see these guys do a fairly good job for their clients although I must admit to never having seen a jury trial by one (not surprising as juries are fairly rare in Virginia). A couple times I've heard judges ask questions along the lines of the "2 Youts" question but most of the time it's just a matter of listening a little more intensely and everything goes well.

Only one time has an accent irked me. I walked into the court and spoke with a prosecutor I had never met before. He spoke with but the slightest British accent and told me all about how he was going to convict my client. I told him we were pleading not guilty anyway. When we got to the bench he broke out into a full-blown British upperclass accent. It was either the pressure of actually arguing in front of the judge or - and I suspect this even now - it was an attempt to use anglophilia as a trial tactic. Still, I won the case so it was pretty much impossible for me to get too upset.

A lady got a protective order against her husband. He kidnapped their children. The police did not respond to several calls from the lady. The husband killed the children and then committed suicide by cop.

Subsequently, the lady sued the police and town. The 10th Circuit ruled that due process was violated when the police did not respond to her reports of a violation of the protective order. Apparently, from reports of the oral argument, the Court was skeptical of this finding.

Personally, I am of a belief that domestic matters are, and ought to be, State matters. However, as the reader who forwarded this to me pointed out, the Congress has recently stepped into the domestic area with the Schiavo legislation. Now, I've not done any serious reading or analysis on that case (not crimlaw) but it is clearly a huge step into a State area by Congress. Is more of the same to come in the future?

Probably. When a congressman goes home it can be hard to explain his votes on foreign aid or foreign trade matters. However, voting "aye" on the "Police Must Respond to Domestic Violence Act" is going to be something which everyone will understand. And how many are going to care that it's an expansion of federal powers?

21 March 2005

Of course, there are things which are worse than these assertions. Usually, I can convince Client that his interpretation is wrong (although, more than once that has involved yelling matches). The worst problems I've had have been the guys who actually know enough of the law to get themselves in trouble.

For instance, clients who are used to the way the legal system works in the cities often come to the conclusion that even if there is absolutely no doubt as to their guilt doing things which will make the prosecutors' lives harder will cause a better deal to appear. Apparently, just saying the word "jury" in the cities gets you a lot better deal. It doesn't work that way in the suburbs or more rural communities. In the suburbs the prosecutors lick their lips at the possibility of a jury. They figure the more conservative juries will break in their direction and, since juries sentence in Virginia, that the client will get much more time then he would otherwise. It may crowd the docket a little but that is worth the extra punishment expected. In the rural courts they have so much time available that they just aren't crowded by a jury so asking for one has no real effect (except, again, to expose the client to a conservative jury).

But try to explain that to a client who has had three charges in the city knocked down to misdemeanors the day before his jury trial and who's seen other people get the same treatment. Some refuse to listen. And of course, when Client gets 3 1/2 years for an offense a judge would have given him 7 months on, it's my fault.

The Virginia Supreme has mandated that for this year certain appellate paperwork must be filed through email in PDF format.

When one files a petition for appeal in Virginia's Court of Appeals it is generally denied and a short order explaining the reasons for the denial is sent. If the party disagrees with the reasoning he asks for an in-person review by real, live judges and must file a one page explanation of what the Judge who wrote the order got wrong. Then you go explain it in person and try to get the case heard.

Comes now a new Rule of the Supreme Court of Virginia: 5A-15A. This Rule, which is only in place for this year, requires the one page explanation to be filed electronically, as an attachment to email, in PDF format.

Now, as far as I can tell, this Rule isn't online with the other Rules on the Legislature's site. And, so far I haven't had to do this (give me a couple months). In fact, I didn't even know about the new rule until today. How did I find out? An attorney who is less proficient with computers than I am was asking me how to convert her document into PDF in order to send it (my knowledge of computers compared to a 16 year old is probably weak but compared to some of my colleagues I sometimes feel like I could write source code for the Mars Lander). Later, before I went and checked it myself, another attorney confirmed the existence of this Rule and told me he had to go buy a $75 program in order to convert his files to PDF.

First, addressing the Rule itself: (A) Why mandate that this must be done electronically by all attorneys? I know guys who don't even have email accounts who practice law quite well (and it ain't only the older gentlemen). These people are going to have fits trying to adapt to this Rule. Is opening a letter and filing it that much more difficult than opening an email attachment, printing it out, and filing it? Don't get me wrong, I like the idea as an alternative method of delivery but see no great advantage to it.

(B) Why PDF? Have they never heard of RTF? RTF comes standard with every wordprocessor I've bought in the last ten years and it's usually available for the better ones found as freeware or shareware. PDF is not so readily available. Why choose a less available format? People always seem to forget that RTF is out there.

Second, solutions: Okay, all you panicking Virginia lawyers out there, I have a simple solution. Go to OpenOffice.org and download the free program (and if you're good people send them a few donations). You'll probably want to change its settings so that it saves in DOC format rather than its own format. Open Office has a number of programs but I use only the wordprocessor (I'm told the others work just as well as it does). If you use this wordprocessor for a while you'll probably never go back to Word. It is far better designed, easier to use, and provides you with better options.

In particular, at the very top, center (next to the printer symbol) is an icon of a sheet of paper with PDF at its bottom. Once your document is prepared you can hit that button and it will be saved in PDF format. No muss, no fuss. And you don't have to go spend $75 for a special program to do it for you.

Go get OpenOffice right now. The Court may impose flawed Rules but that doesn't mean it has to effect your pocket book. I'd like to see the Rules to continue to develop in this direction, but, hopefully they will allow for filings in the alternative (possible) and change the required format (doubtful).

Will someone PLEASE tell me how any rational human being cannot see that the meaning of the Constitution evolves over time? Who here cannot agree that the meaning of WORDS evolve over time? Do I see any hands? This is why we have new versions of dictionaries periodically. OK, so if the Constitution is words, and words evolve over time, who is to be the arbiter of the law in relation to the evolving meaning of words? The Supreme Court of course... I guess I have a lot coming to me in law school, but it seems to be a ludicrous proposal that we should only use "original meaning" to interpret the Constitution, a thoroughly arbitrary step back several hundred years in human understandings.

Sure, words evolve over time but it doesn't happen at nearly the pace it once did. The meanings of most words are now what they were at about the time the Constitution was written. While there are numerous accents and slangs which still exist a kind of Common Written English has evolved with the literacy of society in general and the efforts of the good folks at Webster and Oxford. Sure, there are some differences: chesterfield/couch, queue/line, boot/trunk, centre/center (the only appropriate use of the spelling centre in the States is Centre College in Kentucky anyone else using it is appealing to pretentiousness). However, more serious political/philosophical terms have tended to retain their meaning.

The real problem is that any baseline document is either incredibly long and complex or short and vague. Our Founders chose short and vague. While the Constitution is not a vague document in its entirety it doesn't even try to address every single situation with specificity. It does not address some areas at all, addresses some specifically, and allows for many a gray areas which Congress and the courts can elaborate on.

The argument is where a specific question/problem falls in this spectrum. Stepping into this void are a number of theories: textualism, originalism, and living constitutionalism (for lack of a better term).

Textualism

Personally, I am a textualist. How did I become a textualist? By watching statutes and Constitutional Amendments get absolutely mangled by courts which do not want to overturn convictions.

As I define textualism it is an attempt to first and foremost to get the meaning strictly from the words. However, this does not mean you are so confined by the words that you must come to ridiculous conclusions such as the 4th Amendment's protection of "papers" only applying to cellulose pulp products. The primary question is whether the particular situation is actually addressed by the Constitution. If it is not the analysis ends there. It's something that should be in the realm of the Congress or State Legislatures. If it is clearly stated then the answer given is the answer given. Of course, the vagueness of the Constitution can often lead to ambiguity which must be resolved in order to answer the question.

When faced with words that have some ambiguity to them the first recourse should be to rules of construction such as the Rule of Lenity (in criminal cases), expresio unius est exclusio alterius, noscitur a sociis, or ejusdem generis. Of course, I'm not foolish enough to believe that this will solve all contested interpretations. If used to interpret constitutions and statutes more often than I see now it would probably lead to a number of better reasoned opinions but it cannot solve all ambiguities.

Historical Analysis

To the extent that there are further ambiguities IMHO the next step should be historical analysis (originalism). It's not arbitrary to look back to what the historical intent of a disputed word or phrase was in the text. In fact, it may be the only honest way to determine meaning if the language used has shifted its meaning over time. This is especially important in a document such as the Constitution which is supposed to have set the limits within which our government can act. Historical analysis can help us know what these limits are.

Of course, there are problems with historical analysis. For something involving as many people as the constitutional convention it is most likely impossible to know exactly what the majority of the people of the convention thought about a particular passage. We can look to writings such as the Federalist Papers and the Anti-Federalist Papers and find some political philosophy and practical application but how much is apology created after the fact? The very point of these papers were to persuade. How much were the interpretations offered skewed in order to persuade the audience their audience? How closely do they track with the reasoning of the voting members of the convention? Well, short of actually gathering the notes of every member (making the assumption that they all kept notes) and comparing them in depth to provide analysis you aren't going to have an answer to that. That doesn't mean documents such as those mentioned above shouldn't be relied upon. It just means that one should be wary of blind acceptance of their assertions.

Personally, I prefer a more general historical analysis. For instance, in Cabballes Justice Stevens asserts that the Fourth Amendment is not applicable if the only thing which would be exposed is contraband. A historical view makes this position hard to justify. Among our Founders were a number of smugglers and at least one smuggler's lawyer (John Adams was John Hancock's lawyer). It seems likely that the concern of this Amendment is not one of whether legitimate activities or items are exposed; it is intended to put a crimp on the government in all searches. However, even here the analysis has flaws. The two august personages I mention above were not signatories of the Constitution and I have no idea what roles, if any, they might have played in the Amendments (I'm sure I could find out but it's late so I am going to finish this extemporaneously and go to bed). I don't specifically know if the people at the 1887 convention had the exact same intentions as those in the Continental Congress. I just have a pretty good idea of what the leading citizens in that general time period believed were the abuses they had suffered under the British and knowledge that the Constitution was quickly amended to keep that from happening under our federal government. It gives me an understanding of the most likely meaning of the Amendment.

Living Constitution

The living or evolving Constitution can bring results which are good or bad, depending upon your point of view and the particular case at hand. However, in my opinion this interpretation of the Constitution is a veiled way of asserting one particular thing: the common law is superior to statutory law.

Now, obviously there are times when constitutional interpretation requires courts to assert the power to apply the Constitution to a statute. For instance, if Congress were to pass a statute denying any citizen of German descent the right to a jury trial the courts should strike that statute down as violative of the 6th Amendment.

The difficulty arises when there is little for the courts to hang their hats on. In cases such as the recent death penalty decisions making it unconstitutional to execute retarded or underage defendants there really isn't anything in the Constitution which addresses this matter directly. The Fifth and Fourteenth Amendments rebut any assertion that the death penalty itself is unconstitutional and there are no further instructions as to the individual characteristics of a person who is eligible for death.If we look to history we see over 200 years with the legislatures deciding this question. Nevertheless, the Court took it upon itself to find that such executions were cruel and unusual. If you look at the opinions they don't follow the this is the statute and this is what the Constitution says about that model. One key indicator that they are common law decisions is their appeals to persuasive authority. Personally, I could care less if persuasive authority comes from Wyoming or East Timor; if a court is appealing to it that court is not deciding things per the words in the constitution. It is justifying a change in the common law.

17 March 2005

The rumor which passes around the jails every single year that the General Assembly has shortened the time amount of time those convicted of a felony must serve from 85% to 66%. Every single year I have clients who believe the scuttlebutt at the jail which tells them this is going to happen and tell me to my face that I'm wrong when I say it ain't gonna.

~ ~ ~

Why can't the regional jail that a lot of my clients are at stop giving my clients a number which I haven't used for about 4 years? The clients are assigned to me via a televised pre-trial hearing and the jail gives them this old number. I've tried fixing it a few times but nothing has stuck. The worst of it is that the phone company has reassigned this number to some poor family which I just know is getting attempted collect calls all the time.

~ ~ ~

How did my client's mother in the Virgin Islands get my cell phone number? I didn't give it to Client.

~ ~ ~

Why have all my white clients decided that getting tattoos all over their bodies is the thing to do? Here's a hint – if you think you are going to ever go to court at least don't get a 311 tattoo on your neck or the ever popular, ever varied message tattoos in front of your knuckles. A shirt, or even the jail coveralls, can cover most tattoos but those are going to show and the judge and/or jury will assume they mean bad things. For that matter, don't put number code tattoos anywhere. People can figure out what those things mean pretty easily.

~ ~ ~

In the last couple months I've had two, count'em TWO, cases with issues preserved for appeal which were slam-dunk winners. Slam-Dunks!!. I mean, the law was so clear that even the Virginia Court of Appeals was going to have a heck of a time finding a reason not to overturn. Both clients decided not to appeal.

~ ~ ~

On the other hand, after going almost a year without any of my clients wanting to appeal anything, suddenly within a week I have three. I was substituted in for one, so I don't know how strong that case is. Another has a strong argument (unless the Court of Appeals is going to tell me that collateral estoppel doesn't exist anymore). The third will have some sort of argument, I'm just not sure what it will be yet. I take some small pride in the fact that I've never had to file an Anders brief so I'm going to have to look at that transcript pretty hard and find that glaring error which I don't remember at this moment.

I am representing Mr. Mikhail Khodorkovsky (M.K.), CEO of YUKOS Oil Giant Company in Russia which I hope you are aware of. In that capacity, I would like to ask for your partnership in re-profiling of funds valued over US$165,000,000.00 (ONE HUNDRED AND SIXTY FIVE MILLION UNITED STATES DORLARS) only.

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You will be provided with a Memorandum of Understanding or an Agreement to guide and guarantee you further in your participation. Your "Management Fees" will be 10%, If you are interested, please write back and I will provide further details which I cannot do now for reasons which I hope you will understand perfectly well.

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[comment] The scammers are getting better but y'know, the fact that it came with Spanish advertising at the bottom and asked me to contact at a "teenmail" address in Africa left me kind of suspicious.

1) Good to know I wasn't the only one having problems with Blogger. For about three days I couldn't get it to act right at all. Of course, as soon as I wrote the nastygram to Blooger telling 'em it was broke everything started working again (kinda like taking your car to the mechanic - that sound will never happen in the garage).

3) The Lord Chancellor may change from head of the judiciary to head of the Bar but the Lords are demanding that he remain a peer and a lawyer. Aw c'mon. Why would you need a lawyer to lead lawyers? I say you give the job to some low level party hack as a reward for his delivery of the votes in his county. After all, a guy who's spent the last three years rounding up the party faithful and stumping in local politics, all the while maintaining his job as a postal supervisor, can regulate lawyers as well as a lawyer can. Can't he?LvUKCrimJust

7) I really don't think you can name the greatest criminal lawyer. The problem is that one way or another the ones which come to mind are the people who are publicized either through print or video media or self-aggrandizement. My experience has been that most of the really good lawyers I've seen aren't publicity oriented. I can name the five attorneys I would hire in Virginia if I were charged with a crime but none of them receive any great amount of publicity. I suspect that it has ever been so.

8) Move sand around on your property and the federal government may be able to force a judge to convict you but it cannot force him to send you to prison (at least since Booker). However, it can still make every effort to bankrupt you.

After what looks to have been a harrowing sentencing hearing filled with the sorts of emotional things that lawyers pack into these hearings and an outburst from Peterson's father accusing a prosecution witness of lying:

15 March 2005

Hard to feel sorry for prosecutors about how much they are paid. The offices I see are usually staffed pretty well and often have support staff which does a lot of the grunt work. As well, some counties add funding out of their own pockets to boost income for prosecutors. And prosecutors don't have to pay for things like health insurance.

Of course, it's also misleading. Despite a constant drumbeat about "defense lawyer services" the General Assembly really hasn't done much. Fees paid to court appointed attorneys in Virginia are capped so low that pay for indigent defense here is among the lowest paying in the nation (if not the lowest).

As well, there are hidden ways which prosecutors get allocated funds by the General Assembly. If I need an expert or an investigator I have to get court approval and the funds come from those the General Assembly has allocated. If the prosecutor needs advice from an expert he can call the Commonwealth's forensic lab. If he needs something investigated he calls the police, deputies, troopers, etc. in his jurisdiction. If the amount of money spent by police preparing a case was credited against the prosecutors (even at 50%) and the work done for prosecutors at the forensic lab was added in I suspect their "allotted" funds would dwarf the money allotted for defendants.

I must admit that I never know exactly what to make of claimed case loads by prosecutors. If the prosecutor is counting all the traffic cases which the local troopers bring to court it isn't really an accurate count. On the other hand, I don't really think that it's fair for prosecution offices only to be given credit for felonies. There are a number of misdemeanors (domestic violence, DUI's, etc.) where the charge is serious enough and carries ramifications such that both a prosecutor and defense attorney should be present. Another issue might be the fact that in most cases of a case load the prosecutor really isn't going to have to do too much; a lot of cases just move through the system without any doubt as to their final result.

I'd suggest an accounting which took in only actual cases tried on not guilty pleas but there again that's not really fair because in close cases a prosecutor may work the case hard to get it where the defendant takes a plea. As well, prosecutors have to be generally ready in just about every case they have on the docket. While 95% of them are going to go smoothly how does he know if I'm going to show up, take an otherwise routine case to trial, and cite case law to support an argument that my client can't be convicted of robbery because the color of his shirt was pink and green.

Hey, maybe we could tie prosecutor funding to indigent defense funding. Every time defense attorneys get a raise prosecutors would get a raise! Sounds like a good idea to me.

I'm not an expert in the PATRIOT Act but assuming there are parts of the Act which are obnoxious to the Constitution it would be really dumb to use those powers generally. At least in the beginning you would use them sparingly, in the most extreme cases where it would be very difficult for an appellate court to overturn the conviction. After all, how often do you read statements like this in an appellate court decision? "Despite the fact that the defendants killed six police men in the bank robbery which was done to support Hamas activities, we find that the evidence must be thrown out as fruit of the poisonous tree because it all stems from a violation of the constitution under section ____ of the USC as amended by the PATRIOT Act."

Thereafter you would expand the power to more common cases where attempts to curtail it would be difficult because of the established case law.

10 March 2005

I call earlier today and arrange to go to visit three clients at the juvenile detention center at 6:30 p.m. I drive out to the middle of nowhere to Beaumont Juvenile Detention and after driving forever down a two lane country road I finally get there at 6:15.

I leave most of the stuff from my pockets out in the car because this place has gotten pretty squirrelly about what I can take in on other times. I walk up to the gate and get buzzed through. Then I go in the front door, empty my pockets, walk through the metal detector, and get a pat down from the male guard. I drop off my keys and driver's license at one window and then walk over to the main control room and wait and wait and wait until someone finally comes over and asks whom I am there to see. Then I wait some more until the guard finally tells me that I can go through.

I get buzzed through two doors and, after I wait a little longer, I'm directed to a room across the hall. The room is set up to be a holding room for kids going into (or coming out of) the medical office but it's also set up so that the doors on both sides lock and there is a large window through which the control room can watch everything that goes on in the room.

My first client is brought to the room almost immediately. He's basically what would be a "trustee" if this were an adult prison so they just let him walk up and buzz him in. We have our meeting and then they just buzz him out (doors in jails, detention centers, and prisons buzz when opened remotely), leaving me in the room by myself.

I stand in the room for waiting for the next client. At one point a group of kids is escorted past the room and one of the kids starts telling the guard that I'm his attorney but they won't let him stop. As they walk by one of his fellow detainees says "That's your attorney? You're gonna be found guilty." I look over at the kid through the window and he shoots me a huge grin and starts laughing. Then they are shooed down the hall by the guard.

So I wait some more. Meanwhile, I try to decipher the gang graffiti written on the door. The most interesting are a couple Stars of David with two pitchforks at the top, and two lines at the bottom with three dots around each line. Unlike the stereotypical version, neither had a "G" or "D" on it. One had roman numerals for 7 on the left, 6 in the middle, an 3 on the right, all upside down. The second actually had the numbers 7, 6, and 3 (rightside up); it also had a 360 above it and what looked like 2#14 below it (somewhat scratched out).

Finishing with the door, I wait even longer. After more waiting the guard calls me on the intercom and tells me that she is trying to get a guard to go get my second client out of "behavioral management" (solitary). She also tells me that it will be a while before they can get my third client to me because head count has just started. I wait some more. Across the hall from the room I'm in there is a group of at least 10 guards just sitting there. Eventually, they seem to start some sort of training but that ends when, all of the sudden, about 8 guards scramble out of the room and run full tilt down the hall (I have no idea where they were going but it must have been dang important).

After a minute or so, two guards come back. They look over at me and one of the guards goes over to the control room and talks to the guard there for a second. Then he comes over, opens the door with his key, and asks whom I am waiting for. I tell him and he looks around the room and gets an embarrassed look on his face. He tells me that he is going to get someone from medical to clean the room I'm in (someone had eaten their supper in the room and left the styrofoam trays, napkins, and leftovers strewn under the bolted down chairs). He then opens the door to the medical office and tells them that "there's an attorney in there waiting for his client and you need to clean your area." The nurse then gets a kid who is waiting in the other medical holding area and has him clean the room.

The guard then tells another guard to go get my second client from behavioral management and bring him to see me. When he gets to the room he is in handcuffs but not the full body lockup (waist chain with cuffs attached and leg chains). This indicates to me that this kid isn't nearly as bad as most of the kids I've dealt with who are being held in behavioral management. We sit and talk about his case for a while and then a guard comes to return him to his cell.

Again, I wait. When the guard left he didn't close the door so it would lock. One of the counselors comes over to the room and starts talking to me about a kid whom I have been appointed to the day before. I don't have the kid's paperwork yet and didn't even know that I was appointed. She tells me that's okay, she sees that I am visiting clients today so she knows I'll come back to visit this kid. Then she tells me that she's never actually seen an attorney come to visit any of the kids at the detention center before the court date (personally, I know they do come if for no other reason then the fact that we compare stories out of this place with one another).

Then I wait some more. Finally, my last client is brought to the room. We discuss his charges until we're both satisfied. Then I hit the intercom button to get let out but the guard in the control room doesn't even look up. After a few seconds my client steps up to the glass and starts hitting it and yelling at the guard that she needs to let me out. She doesn't look up. A little worried that my client might get himself in trouble I hit the intercom button again and she still doesn't look up. Just then another guard walks by and my client yells to him that they need to let me out. The guard then goes and gets the control room to let me out of the room.

I walk over to the exit and again stand there waiting. I wave a couple times trying to get the attention of the guard in the control room without any luck. Finally, a couple of guards come by and let me out into the lobby area with their keys. I get my keys and ID back and head out to the gate where, miraculously, I am buzzed through right away. Then I jump back into the car and drive 45 minutes back to my office.

And thus ends another enthralling visit to a juvenile detention center.

08 March 2005

Lewis v. CommonwealthLewis was convicted of four counts of attempted robbery and acquitted of the other charges by a jury. The Virginia Court of Appeals upheld the Circuit Courts decision in refusing to grant a mistrial based on improper impeachment by the prosecutor. The Supreme Court reversed and remanded. The Court held on March 3rd that Lewis’ right to a fair trial was prejudiced when the prosecutor implied that the witness and defendant engaged in criminal activity unrelated to the charged offenses. The Court found that the prosecutor’s implication of illegal drug activity of the defendant with the witness was unfounded. The Court states “that we live in a ‘time of widespread revulsion against the [illegal] use of controlled drugs.’” (Quoting King v. Commonwealth, 217 Va. 912, 915 (1977)). Thus, the Court held that the unfounded implication of illegal drug use during cross examination by a prosecutor is improper impeachment, resulting in a mistrial.

Palmer v. CommonwealthPalmer was convicted of possession of a firearm when under the age of 29 after having been convicted of a delinquent act as a juvenile that would have been a felony if committed by an adult under Virginia Code Section 18.2–308.2. The Supreme Court stated that when a prior conviction is an element of a charged offense, the burden is on the Commonwealth to prove the conviction beyond a reasonable doubt. As provided by Virginia Code Section 19.2-307a judgment order must reflect the plea of the defendant, the verdict or findings of the fact finder, and the adjudication and sentence of the court. In Palmer’s case, the juvenile and domestic relations district court records do not show that he was convicted of any particular delinquent act. The Supreme Court held that since the lower court does not know what acts Palmer committed as a delinquent, the “court may not engage in conjecture or surmise in determining the offense for which a defendant was convicted.” The Court held a bright line rule in this case: when the commonwealth seeks to prove a prior conviction as an element of a crime by presenting an order in a prior case, the order must show that a judgment of conviction was entered.

First, let me apologize for not getting too many posts up lately. I've been hit by a lot of work and I'm trying desperately to get an article I promised someone written. Hopefully, things should lighten up by the end of the week and let me devote more time here.

02 March 2005

Over at the Conspiracy, Eugene Volokh discusses why an issue might be decided under the federal constitution rather than a State's constitution.

The answer for this in Virginia would be easy: because there is no enforcement available for any right under the Virginia constitution. These rights are "co-extensive" with federal rights. In other words only federal rights will be enforced.

As a practical matter I'd offer one more: the availability of case law. Quite often State law may have only one or two cases concerning the issue you are arguing - if the issue is arcane enough it may have none. This can be maddening when you are trying to brief or appeal an issue. The solution? Use case law from other jurisdictions. Naturally, this approach is not going to find cases which directly address your issue under your State's constitution. However, with the great number of State appellate courts and federal circuits churning out decision after decision based on the federal constitution there will almost always be a couple courts which have opined upon your issue. I think this causes rights based arguments to almost always lead with the federal constitutional argument. There's just so much more to work with when addressing things federally.

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.